ELIA, Commissioner.--Petitioner, Middle Village Preparatory Charter School (“the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it a co-location site in a public school building or space in a privately owned or publicly owned facility at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e). The appeal must be sustained in part.

Petitioner is a charter school currently located in private space in Community School District (“CSD”) 24.[1] It is authorized by the Board of Trustees of the State University of New York (“SUNY”) to serve students in sixth through eighth grade. Petitioner’s provisional charter was issued on January 1, 2013 for a term of five years.

Petitioner opened for instruction in the 2013-2014 school year serving students in sixth grade. It added seventh grade in the 2014-2015 school year and will add eighth grade in the 2015-2016 school year.

On May 14, 2015, petitioner submitted a written request to DOE for co-location in a public school building pursuant to Education Law §2853(3)(e) for its expansion to seventh and eighth grades.[2] By letter dated June 26, 2015, DOE acknowledged petitioner’s May 14, 2015 request for co-located space, but stated that “[w]e will not be extending an offer of co-located space in a DOE building in Community School District (CSD) 24 at this time.” This appeal ensued.

Petitioner asserts that DOE failed to offer it facilities in violation of Education Law §2853(3)(e) and that such failure was arbitrary and capricious or an abuse of discretion. As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5), beginning with the 2014-2015 school year and continuing thereafter.

Respondent requests that the appeal be dismissed in its entirety.

Preliminarily, I note that this appeal was commenced pursuant to Education Law §2853(3)(e), which was added by Part BB of Chapter 56 of the Laws of 2014. Education Law §2853(3)(e)(3) provides that a charter school in the City School District of the City of New York shall have the option of appealing the “city school district’s offer or failure to offer a co-location site through ... an expedited appeal to the commissioner” pursuant to Education Law §310 and the procedures prescribed in Education Law §2853(3)(a-5). Pursuant to Education Law §2853(3)(e)(3), in any such appeal, the standard of review shall be the standard prescribed in Civil Practice Law and Rules (“CPLR”) §7803.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner asserts that DOE failed to offer it a co-location site in a public school building or space in a privately owned or other publicly owned facility at no cost to petitioner, in violation of Education Law §2853(3)(e). Education Law §2853(3)(e) provides that, in the City School District of the City of New York, charter schools that require additional space due to an expansion of grade level approved by their charter entity for the 2014-2015 school year or thereafter, and request co-location in a public school building, shall be provided access to facilities for those grades newly provided. The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to the charter school (Education Law §2853[3][e][1]).

Here, petitioner made a written request for co-location space in a public school building on May 14, 2015. Specifically, petitioner requested space for its expansion to seventh and eighth grades beginning in the 2014-2015 school year. The record indicates that in its June 26, 2015 response, DOE stated that it would “not be extending an offer of co-located space in a DOE building in Community School District (CSD) 24 at this time.” However, in the event that DOE did not offer petitioner a co-location site in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner. Instead, DOE indicated in its June 26, 2015 response only that it would not be extending an offer of space. As it did not offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner, DOE failed to comply with the requirements of Education Law §2853(3)(e)(1).

The standard of review in an appeal pursuant to Education Law §2853(3)(e) is the standard prescribed in CPLR §7803, which lists questions that may be raised in a proceeding brought pursuant to Article 78. The question set forth in CPLR §7803(1) is whether the body or officer failed to perform a duty enjoined upon it by law. The question set forth in CPLR §7803(3) is whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed. Although Education Law §2853(3)(e)(3) does not specify which specific provision of CPLR §7803 applies, I find that under either subdivision (1) or (3), petitioner has carried its burden of establishing the facts and law upon which it seeks relief.

The record in this case indicates that petitioner is approved by its charter entity to serve students in sixth through eighth grade and that it commenced instruction in the 2013-2014 school year serving students in sixth grade. The record further indicates that petitioner expanded to serve students in seventh grade in the 2014-2015 school year and will expand to serve students in eighth grade in the 2015-2016 school year, an expansion for which it requires additional space. Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level, commencing in the 2014-2015 school year with its seventh grade expansion, that was approved by its charter entity, albeit in a charter action that occurred prior to the enactment of Education Law §2853(3)(e). There being no language in the statute limiting its applicability to expansions of grade level approved by a charter entity on or after the effective date of Education Law §2853(3)(e), I find that petitioner has met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly owned space (seeAppeal of Great Oaks Charter School, 54 Ed Dept Rep, Decision No. 16,692).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner in each remaining year of the charter term, commencing in the 2014-2015 school year, rental assistance based on student enrollment in any newly-added grade level(s) for which petitioner has been approved to provide instruction. Specifically, with respect to an existing charter school whose expansion of grade level is approved by its charter entity before October 1, 2016, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to the grade level expansion ... that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and ... (ii) for a charter school which expands its grade level, pursuant to this article, before [October 1, 2016], the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion” (Education Law §2853[3][e][5]).

Therefore, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner for newly-added grades commencing with the 2014-2015 school year and for each remaining year of the current charter term, an amount attributable to its expansion that is equal to the lesser of the actual rental cost of an alternative privately-owned site selected by petitioner or 20 percent of the product of the charter school’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of expansion. As noted above, commencing with the 2014-2015 school year, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each year of the current charter term.

In this instance, petitioner also has not been afforded the opportunity to present DOE with evidence of the actual rental cost of an alternative privately owned site so that DOE can determine whether such rental cost is less than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

Nothing herein should be construed to prevent respondent from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner, for newly added grades commencing with the 2014-2015 school year and for each remaining year of the charter term, an amount attributable to the grade level expansion that is the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.

END OF FILE

[1] According to petitioner’s director of operations, petitioner currently occupies private space and is incurring rental costs and fees.

[2] I note that petitioner’s request for co-location space for its seventh grade was submitted after the commencement of the 2014-2015 school year. However, DOE did not raise any objection, such as laches, and the issue is not before me.